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Aarwaa · #7 Sunday, February 10, 2008

Islam and the law

What role for sharia in the West?

Feb 9th 2008
From Economist.com

A row in Britain after an Archbishop says that Muslims might live, in part, by separate legal rules

STEEPED in a culture of emollience, gentility and the avoidance of hard arguments, England’s established Church has little knowledge of how to handle public opinion when it suddenly finds itself in the eye of a gigantic storm. And, for better or worse, the country’s politically-active Muslims are capable of showing much greater deftness and sophistication.

That is one conclusion from the furore that has followed a series of controversial statements about Islam and the law by Rowan Williams, the Archbishop of Canterbury. In a lecture, he suggested that the British authorities would inevitably have to make some accommodation with sharia, the Muslim legal system; he also noted, in a radio interview, that certain provisions of sharia are already recognised in British society and under British law.

“What a burkha” declared the Sun newspaper, alongside a picture of a head-covered figure making a rude gesture. To judge by the tone of the British press (and not only the tabloid press), the Archbishop—who is also the leader of the worldwide Anglican Communion, numbering 80m people—might have been advocating the mandatory covering of every female British head, plus the instant introduction of amputation, whipping and stoning for the most trivial misdemeanours.

In fact, of course, he said nothing of the kind. But what he did advocate was not uncontroversial: he suggested there could be a “plural jurisdiction” in which Muslims could freely decide whether disputes (in which only co-religionists were involved) were resolved in secular courts or by Islamic institutions which offer an alternative forum for arbitration.

As long as the decision to seek, and abide by, a form of arbitration is freely made, it is hard to see how any secular legal system could actually ban people from using it. But the extent to which state law can recognise and “use” decisions made by such private arbitration services is a difficult grey area. And perhaps—to interpret the Archbishop charitably—he was merely pointing out that such difficulties are bound to grow.

In any case, for those who are already making political capital by playing on people’s fears of multi-culturalism, the speech by the Archbishop was a gift And for some of the people who are concerned to defend the cultural rights of Muslims, both the speech and the reaction it prompted were an embarrassment, to put it mildly.

A spokesman for Gordon Brown, the prime minister, declared firmly that “British law should apply and...should be based on British values” and that in no circumstances could Muslim legal principles be used to let people violate the law of the land.

But the Muslim Council of Britain, an umbrella organisation which is often criticised for the stridency of its cultural demands, made a better fist of defending what it called the Archbishop’s “thoughtful intervention” than any Anglican did. The Anglican prelate had not been calling for a parallel penal code, or for the existence of two different legal systems, the MCB noted. All the Archbishop was implying was that Muslims should enjoy parity with other religious comunities, like the Jews, who have set up their own institutions to arbitrate disputes and interpret religious rules.

In any case, the reality to which the Archbishop was referring is palpable enough: there are already plenty of sub-cultures in Britain where people choose to regulate their behaviour, in matters like diet, marital status and inheritance, by a set of self-imposed norms which may differ quite sharply from the remainder of society.

The big question, for any secularist advocate of the rule of law, is whether people who participate in these sub-cultures really have a right to opt out, or to indeed to move from one cultural world to another.

The entitlement of sub-cultures to exist can easily become inimical to freedom if vulnerable individuals (such as women and children) are in effect trapped inside them because of massive pressure not to “betray” the community. The Archbishop would have drawn a much less hostile reaction if he had remembered to make that point more firmly.